State v. Lewis
State v. Lewis
Opinion of the Court
Opinion
The defendant, Demetrice L. Lewis, appeals from the judgment of conviction, rendered after
The jury reasonably could have found the following facts. On June 3, 2005, at approximately 8:24 p.m., officers of the New Haven police department, including Luis Rivera, were dispatched to the intersection of North Frontage Road and Orchard Street after having received complaints of a robbery with a weapon at that location. The robbery suspects were described as three seventeen to eighteen year old men, one wearing a gray hooded sweatshirt and white “uptown” sneakers, and the other two wearing black hooded sweatshirts and blue jeans. In the area of 49 Waverly Street, Rivera and another officer stopped and detained the defendant, who was riding a bicycle and wearing dark clothing, and Joshua Williams, who was walking and wearing a
Rivera conducted a warrant check on the defendant and found that there was an active warrant for his arrest. Rivera placed the defendant under arrest and conducted a thorough patdown of his person. Rivera discovered a clear sandwich bag in the defendant’s pocket within which there were nineteen Ziploc bags, each containing a white, rock like substance, which a field test revealed to be crack cocaine. Rivera also found $116 in the defendant’s front pocket, $160 in another pocket within the front pocket and $600 in his rear pocket. The money was in denominations of twenty, ten, five and one dollar bills. In the defendant’s rear pocket, Rivera also found a razor blade and a paper bag containing medium and small Ziploc bags. Thereafter, the defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, possession of drug paraphernalia with intent to use and possession of drug paraphernalia with intent to use within 1500 feet of a school.
At trial, Michael Wuchek, a detective with the New Haven police department, testified as an expert witness on the street level sale of narcotics. He opined that the quantity of narcotics, the packaging of the narcotics, the empty bags, the razor blade and the small denominations of money found in the defendant’s pockets were consistent with the street level sale of $10 bags of crack cocaine. Wuchek also testified that street level dealers often work in teams at a specific location, that a lookout riding on a bike commonly would be employed during a street level sale to identify customers or the police
Anwar Houwari, a civil engineer and projects manager and record keeper in the engineering department of the city of New Haven, also testified. After examining an engineering map of the city of New Haven, Houwari determined that the distance between the Timothy Dwight School and 49 Waverly Street, where the defendant was stopped, was 1050 feet.
The defendant was found guilty by the jury of possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, possession of drug paraphernalia with intent to use and possession of drug paraphernalia with intent to use within 1500 feet of a school. The defendant was sentenced to a total effective term of eighteen years incarceration, execution suspended after ten years, with four years probation. This appeal followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court’s failure to instruct the jury on the specific intent element of possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, possession of drug paraphernalia with intent to use and possession of drug paraphernalia with intent to use within 1500 feet of a school violated his right to due process under the fourteenth amendment to the United States constitution.
The defendant did not file a written request to charge with respect to intent and failed to object to the court’s instructions. He now requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
The defendant’s claim also satisfies the third prong of Golding because it is clear from the record that a constitutional violation exists. The crimes at issue are all specific intent crimes. “In deciding whether a criminal statute requires general or specific intent, our Supreme Court regularly has invoked the following distinction. When the elements of a crime consist of a description of a particular act and a mental element not specific in nature, the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite general intent for culpability. When the elements of a crime include a defendant’s intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent. . . . State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971).” (Citations omitted; internal quotation marks omitted.) State v. Nixon, 32 Conn. App. 224, 249, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). Possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b) and possession of narcotics with intent to sell within 1500 feet of a school in violation of § 21a-278a (b) both require a specific intent to sell. See State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) (specific intent to sell essential element of § 21a-278a [b]). The clear language of § 2 la-267 (a) and (c) indicate that those crimes require a specific intent to use drug paraphernalia. General Statutes § 21a-267 (a) (“[n]o person
The court, however, did not instruct the jury on specific intent. Rather, it instructed the jury that “a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct.” (Emphasis added.) Intent to engage in proscribed conduct is not sufficient.
Finally, the defendant’s claim satisfies the fourth prong of Golding because the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. When reviewing a
The court instructed the jury on general intent and referenced that definition numerous times. Nowhere in its instructions did the court define specific intent. This is not a situation in which, despite an improper instruction on intent, the court subsequently instructed the jury properly on intent, thereby eliminating the risk of jury confusion as to that element. See State v. Prioleau, 235 Conn. 274, 321-22, 664 A.2d 743 (1995) (jury not reasonably misled when court made one reference to general intent but repeatedly instructed on specific intent); State v. Austin, supra, 244 Conn. 235-37 (jury not reasonably misled when, despite reference to improper instruction on intent, court referenced proper instruction on intent numerous times). Here, the court’s several instructions as to general intent and lack of an instruction as to specific intent constitute reversible error. See State v. DeBarros, 58 Conn. App. 673, 679-84,
II
The defendant next claims that there was insufficient evidence to sustain his conviction of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school in violation of §§ 21a-278a (b) and 21a-267 (c), respectively.
“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force
A
The defendant contends that the state did not meet its burden of proving that the conduct at issue in the crimes of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school occurred within 1500 feet of a school because there was no testimony establishing that the school identified in the information as Timothy Dwight School was a “public or private elementary or secondary school”; General Statutes §§ 21a-278a (b) and 21a-267 (c); as required under the respective statutes. We agree.
To be convicted of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school, the state must prove, inter alia, that the forbidden acts occurred within 1500 feet of “the real property comprising a public or private elementary or secondary school . . . .” General Statutes §§ 21a-278a (b) and 21a-267 (c). The state’s proof as to this element of these crimes was limited to the testimony of Clifford
The defendant argues that the evidence adduced at trial was insufficient because the category of “public schools” can include schools, such as preschools, which are not elementary or secondary schools. The state argues, on the other hand, that Daniels’ testimony that Timothy Dwight School was a New Haven public school was sufficient evidence to satisfy the element that the school was a public elementary or secondary school for purposes of §§ 21a-278a (b) and 21a-267 (c). It argues, referencing General Statutes § 10-4, that the term “elementary school” includes preschool.
We construe the elements of §§ 21a-278a (b) and 21a-267 and apply them to the facts as reasonably could be
The crimes of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school require proof that the conduct occur within 1500 feet of “the real property comprising a public or private elementary or secondary school . . . .” (Emphasis added.) General Statutes §§ 21a-267 (c) and 21a-278a (b). The statutes in title 10 indicate that there are public schools that are neither elementary schools nor secondary schools. For instance, § 10-4 (a) provides that the state board of education has general supervision and control over “preschool, elementary and secondary education, special education, vocational education and adult education . . . .”
Our Supreme Court recently decided State v. King, 289 Conn. 496, 958 A.2d 731 (2008), in which it held that there was sufficient evidence from which the jury could have concluded beyond a reasonable doubt that Kolbe Cathedral High School in Bridgeport was a school within the meaning of § 21a-278a (b). In that case, four witnesses testified that the location where a narcotics transaction occurred involving the defendant was within 1500 feet of a school, which they referred to as “Kolbe Cathedral High School” or “Kolbe Cathedral.” Id., 521. The court concluded that “the jurors, without question, were able to determine on the basis of the testimony adduced at trial and their common knowledge about the familiar topic of school, that Kolbe Cathedral High School constituted a school, as that term was identified by the trial court’s instructions.” Id., 522.
Because there was no evidence as to whether Timothy Dwight School was an elementary or secondary school, and this is an element of both charges at issue, we conclude that there was insufficient evidence to support the defendant’s conviction of the crimes of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school.
B
With respect to the charge of possession of narcotics with intent to sell within 1500 feet of a school, the defendant also argues that there was insufficient evidence as to another aspect of the element requiring intent to sell narcotics at a location that is within 1500 feet of a school. The defendant argues that there was no evidence that he intended to sell at any particular location. We agree.
Section 21a-278a (b) requires, as an element of the offense, an intent to sell or dispense the narcotics at a location that is within 1500 feet of a school. State v.
“[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a
For there to be sufficient evidence of intent to sell at a specific location under § 21a-278a (b), there must be evidence of something more than just an intent to sell at some unspecified location. In State v. Harris, 60 Conn. App. 436, 442-43, 759 A.2d 1040, cert. denied, 255 Conn. 907, 762 A.2d 911 (2000), this court accepted the state’s concession of insufficient proof as to the element of intent to sell narcotics at a specific location within the proscribed zone when the only evidence as to that element was the defendant’s possession of seventy-one individual parcels of crack cocaine. Mere possession of narcotics with an intent to sell at some unspecified point in the future, at some unspecified place, is not enough. Quite obviously, if one is apprehended while coincidentally passing through a location, there is no logical inference that he intended to sell at the location of the apprehension. In contrast, in State v. Francis, 90 Conn. App. 676, 682-83, 879 A.2d 457, cert. denied, 275 Conn. 925, 883 A.2d 1248 (2005), this court found there to be sufficient evidence of intent to sell within the proscribed zone where the defendant not only possessed narcotics packaged for sale and money layered in a way to facilitate quick transactions, but also, among other things, hid his drugs behind his car’s gasoline cap and walked away, which expert testimony revealed was consistent with drug sale activity. See also State v. Pagan, 100 Conn. App. 671, 674-75, 918 A.2d 1036 (defendant observed selling drugs), cert. denied, 282 Conn. 919, 925 A.2d 1102 (2007); State v. Myers, 101 Conn. App. 167, 177-81, 921 A.2d 640 (defendant’s transfer of drugs at location indicative of intent to sell at specific location), cert, granted on other grounds, 283 Conn. 906, 927 A.2d 919 (2007); State v. Knight, 56 Conn. App. 845, 852, 747 A.2d 13 (2000)
In the present case, there was evidence indicating an intent to sell. Expert testimony and common sense suggest that the quantity of narcotics, the packaging of the narcotics, the empty bags, the razor blade and the small denominations of money found in the defendant’s pockets were consistent with the street level sale of $10 bags of crack cocaine. See State v. Francis, supra, 90 Conn. App. 682 (quantity of narcotics and manner of packaging indicative of intent to sell). When the police detained Williams, the defendant started to pedal his bicycle. There was expert testimony that street level dealers typically would attempt to run away to avoid the police.
The evidence presented in this case, however, did not raise a permissible inference of an intent to sell at the specific location where the defendant was arrested. When stopped by the police, the defendant was on his bicycle in the neighborhood in which he lived. The police did not observe him engage in any activity consistent with immediate drug sales but, rather, stopped him because he resembled the description of a robbery suspect. There was no evidence that the defendant was in the location at issue for any length of time sufficient to support an inference that he was doing more than passing through.
The judgment is reversed and the case is remanded for a new trial on the charges of possession of narcotics with intent to sell by a person who is not drug-dependent and possession of drug paraphernalia with intent to use and with direction to render judgment of not guilty of the charges of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school.
In this opinion HARPER, J., concurred.
The defendant also claims that the court improperly instructed the jury on possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school by omitting essential elements of the those crimes from its instructions. In view of our disposition in this case, we need not resolve this issue.
Although the defendant cited article first, § 8, of the constitution of Connecticut in his appellate brief, he noted that he was not claiming greater protection under the state constitution. See State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992).
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
General Statutes § 53a-3 (11), which defines intent, provides that “[a] person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .” This statutory definition embraces both the specific intent and general intent. State v. McColl, 74 Conn. App. 545, 575, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003). General intent involves an intent to “engage in conduct described by a statute defining an offense”; id.; while specific intent involves “conscious objective ... to cause [a] result . . . .” (Internal quotation marks omitted.) State v. Holmes, 75 Conn. App. 721, 737, 817 A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003).
To the extent that this claim is unpreserved, the defendant seeks review under Golding. We note that “[a]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. . . . [N]o practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim . . . .” (Citation omitted; internal quotation marks omitted.) State v. Singleton, 97 Conn. App. 679, 684 n.7, 905 A.2d 725, cert. granted on other grounds, 280 Conn. 949, 912 A.2d 484 (2006).
When the prosecutor asked the grades or ages of the children who attended that school, the court sustained defense counsel’s objection. The prosecutor then asked: “What grades?” Defense counsel objected to that question. Out of the presence of the jury, the state argued that the question was relevant for proving that the defendant was not a student at that school as required by General Statutes § 21a-267 (c). Defense counsel contended that permitting Daniels to testify as to the ages of the children who attended the school would be prejudicial to the defendant. The parties then stipulated that the defendant was not enrolled at the school on the day in question. The court noted that it would permit the state to question the witness as to the highest grade level at the school but would not permit a question regarding the range of grades or ages of the students who attended the school. When the jury was brought back into the courtroom, the prosecutor concluded his direct examination of Daniels by asking him if the Timothy Dwight School was a public school, to which Daniels responded affirmatively. Defense counsel conducted no cross-examination.
The state has not argued that this is a situation warranting a new trial on the ground that the court improperly had sustained the defendant’s objections to evidence, which, if admitted, would have satisfied an element of the crime in question.
The statutes in title 10 demonstrate that elementary schools include special education and that secondary schools include any regional vocational agriculture center. General Statutes § 10-282 (1) and (2). Those statutes, however, treat preschool differently from elementary school. See, e.g., General Statutes §§ 10-145d (f) and 10-273a.
In State v. Pagan, 100 Conn. App. 671, 675, 918 A.2d 1036, cert. denied, 282 Conn. 919, 925 A.2d 1102 (2007), this court concluded that testimony that a sale of narcotics by the defendant occurred within 1500 feet of the Vincent E. Mauro School “alone would have been enough to satisfy the location element of [General Statutes § 21a-278a (b)].” That case concerned the issue of how far the sale was from the school, that is to say, whether the proscribed conduct occurred within 1500feet of the Vincent E. Mauro School. The issue of whether there was sufficient evidence that the Vincent E. Mauro School was, in fact, a public or private elementary or secondary school was not before the court in Pagan.
In King, the trial court in its instructions to the jury stated that “[a]n elementary or secondary school is a school for any . . . combination of grades below grade seven. A secondary school is a school for any combination of grades seven through twelve, and may include any separate combina
A defense witness testified that she, Williams and another person were walking when the defendant, who was riding his bicycle, approached them. She further testified that at the time of apprehension, the four were talking. Rivera testified that at the time of apprehension, the defendant and Williams were walking. Neither version of events supports an inference that the defendant was doing more than passing through the area.
The state argues that because the defendant was apprehended while riding a bicycle while his companion was on foot, and expert testimony suggested that such a combination was typical of drug dealing, an inference of intent to sell at that location could permissibly be made. We hold that, in itself, the combination of a bicycle rider and a pedestrian is too slender a reed on which to draw the inference of intent to sell at the precise location of apprehension, as also is the fact that the defendant’s apprehension occurred in his home neighborhood.
Concurring Opinion
concurring in part and dissenting in part. I agree with my colleagues in the majority that because the trial court failed to instruct the jury regarding specific intent, the judgment of conviction must be reversed. To that extent, I concur with the majority. Because, however, I am not persuaded by the defendant’s sufficiency arguments, I would remand this matter for a new trial on all counts.
The majority concludes that the evidence was insufficient to prove that the defendant possessed narcotics
Well established decisional law guides our analysis. As our Supreme Court has noted: “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or
“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Aloi, 280 Conn. 824, 842, 911 A.2d 1086 (2007).
“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Smith, 110 Conn. App. 70, 75, 954 A.2d 202,
The majority concludes that there was insufficient evidence from which the jury could reasonably have concluded that the Timothy Dwight School is a public or private elementary or secondary school so as to invoke the provisions of General Statutes §§ 2 la-267 (c) and 21a-278a (b).
The majority, however, concludes that the evidence that the Timothy Dwight School is either a public elementary or secondary school is wanting because school
Nor do I believe that the majority’s construction comports with the purpose of §§ 21a-267 (c) and 21a-278a (b) to create a safe no drug zone within 1500 feet of elementary and secondary school buildings. These statutes relate to geographic distance from a place of drug activity to the location of a school building, and they
As the majority notes, in State v. King, 289 Conn. 496, 958 A.2d 731 (2008), jurors may rely on “their common knowledge about the familiar topic of school” in determining whether the school in question fits within the 1500 foot prohibition contained in the applicable statutes. Id., 522. As a practical matter, I think that it is well within the common knowledge of the average juror that boards of education maintain elementary and secondary schools in which a variety of educational programs take place. Hearing that the Timothy Dwight School is a graded school within the supervision of the New Haven board of education, the jury did not have to speculate that the building comprising the Timothy Dwight School served some other purpose for which there may be grades. Rather, the jury was entitled to infer, from the evidence, that the Timothy Dwight School is a public elementary or secondary school. On this record, I believe that there was sufficient evidence that the Timothy Dwight School fits within the statutory definition of a public elementary or secondary school.
The majority also concludes that the evidence was insufficient to prove that the defendant intended to sell drugs in a particular place within 1500 feet of a school. As the majority notes, to jarove one guilty of possession of drugs with the intent to distribute within 1500 feet of a school, the state need not prove that a defendant intended to be within 1500 feet of a school but simply that such a person possessed narcotics with the intent of distributing them at a place that is geographically within 1500 feet of a public school. State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). “[Djirect evidence of the accused’s state of mind is rarely available. . . .
In this instance, the state adduced evidence from which the jury reasonably could have concluded that when the defendant was apprehended within 1500 feet of the Timothy Dwight School, he was fully equipped with the goods and in the manner of a street level narcotics dealer. In various pockets of his clothes, the police found $876 in denominations of $1, $5, $10, and $20. In the defendant’s pockets, the police also discovered nineteen bags with crack cocaine, various empty bags and a razor wrapped in a plastic bag. That the defendant was geared and ready for business can hardly be disputed.
The majority concludes, however, that evidence that the defendant was equipped and ready to sell some place is insufficient to conclude that he intended to sell at the place where he was detained. But in reaching its conclusion, the majority fails to discuss additional evidence, which, I believe, fills the evidentiary gap and provides an adequate basis for the jury’s determination on these charges. The record reveals evidence that as the defendant sat astride a bicycle, he was stopped on the sidewalk in front of 47 Waverly Street in New Haven in the company of another individual, Joshua Williams.
Additionally, Detective Michael Wuchek of the New Haven police department, an expert in the ways of street level narcotics dealers, testified that the neighborhood in which the defendant lived and had been detained was a high level drug area in which Wuchek had participated in approximately twenty drug arrests. He also testified that the packaging of drugs in several bags suggests $10 purchases and that a seller of street level drugs often carries money in small denominations to make change and in different pockets as a defense to robbery. Wuchek stated that such dealers often confine their sales activities to one neighborhood, often one where they have family or where they are from, one whose alleys and yards are familiar to them so as to facilitate escape and to elude police detection or rival drug dealers. Finally, in this regard, Wuchek testified that such dealers often travel in pairs, with one on foot and another on a bike, one serving as a lookout and protector, while the other engages in transactions. On the basis of Wuchek’s testimony, which dovetails with the operative facts presented to the jury regarding the defendant’s manner and circumstances, it was not unreasonable for the jury to infer that the defendant was not only geared to sell but open for business when and where he was confronted by the police.
General Statutes § 21a-267 (c) provides for additional punishment for one who possesses drug paraphernalia “within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school and who is not enrolled as a student in such school. . . .”
General Statutes § 21a-278a (b) provides for additional punishment for one who possesses narcotics with the intent to sell “within one thousand five hundred feet of, the real property comprising a public or private public or private elementary or secondary school . . . ."
When the state inquired as to the ages and grades of the children who attended the school, the defendant objected, and the objection was sustained. The state then asked: “What grades?” The witness began answering and stated, “[t]he grades are from,” and then the defendant objected. That objection was never sustained by the court, that partial answer was never stricken from the record and the jury was never instructed that it could not consider the answer. Therefore, the jury was informed that the school had “grades,” and this testimony is part of the evidentiary record.
The jury heard from defense witness Shirley Warren that more people besides Williams were at the scene with the defendant when the police confronted them. The jury was free to credit police testimony that only the defendant and Williams were together when the police confronted them or evidence that others were present as well. In either case, the evidence
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